Harper v. Rudek et al

Filing 158

ORDER ADOPTING REPORT AND RECOMMENDATION 127 of Magistrate Judge Gary Purcell and grants in part and denies in part defendant Hernandez's motion...plaintiff's 8th Amendment official capacity claim against defendant Hernandez is dismissed...defendant's motion is denied to the extent she seeks summary judgment on plaintiff's § 1983 claim to the extent it is asserted against her in her individual capacity. Signed by Honorable Joe Heaton on 11/30/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DALE E. HARPER,
Plaintiff,
vs.
JAMES RUDEK, ET AL.,
Defendants.

)
)
)
)
)
)
)
)

Case No. CIV-11-0995-HE

ORDER
Plaintiff Dale Harper, a state prisoner appearing pro se, filed this civil rights action
under 42 U.S.C. § 1983, alleging multiple defendants violated several of his constitutional
rights during his incarceration. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was
referred to Magistrate Judge Gary M. Purcell for initial proceedings.
At this stage of the litigation, only two claims remain.1 One is asserted against a John
Doe defendant and the other is asserted under the Eighth Amendment against Robin
Hernandez, a security officer guard at the Oklahoma State Reformatory where plaintiff
previously was housed. Defendant Hernandez has filed a motion to dismiss or, in the
alternative, for summary judgment.2 Magistrate Judge Purcell has recommended that the
motion be granted insofar as plaintiff’s claim is asserted against defendant Hernandez in her
official capacity and denied insofar as it is asserted against her in her individual capacity.

1

The court partially adopted a prior Report and Recommendation and dismissed five of
plaintiff’s seven claims.
2

Because the parties relied on materials outside the pleadings, the magistrate judge
treated the motion as one for summary judgment to the extent plaintiff’s claim is against
defendant Hernandez in her individual capacity.

Defendant Hernandez objects to the Report and Recommendation. Plaintiff did not
file an objection and thus waived his right to appellate review of the issues it addressed.
United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996); see
28 U.S.C. § 636(b)(1)(C).
The magistrate judge determinated that the Eleventh Amendment barred any claim for
damages asserted by plaintiff against defendant Hernandez in her official capacity.3 The
court agrees and defendant’s motion to dismiss will be granted as to any official capacity
claim.
The magistrate judge also concluded that defendant Hernandez had neither negated
an essential element of plaintiff’s § 1983 claim nor shown that he lacked sufficient evidence
to establish a constitutional violation at trial. The defendant claims the magistrate judge
erred because he relied upon speculative declarations by the plaintiff which are not supported
by other evidence. The court disagrees.
Plaintiff has provided more than “conclusory, speculative and unsupported” evidence
of defendant Hernandez’s involvement in the alleged beating that underlies plaintiff’s claim.
The fact that one of plaintiff’s witness has a criminal record and declared that the altercation
occurred on June 26, 2011, while plaintiff has submitted documentation indicating he was
beaten on June 27, 28 or 29, does not warrant discounting the evidence altogether, although
it may be a basis for impeachment.

3

Although plaintiff seeks injunctive relief in his Amended Complaint [Doc. #69], he
appears to request only monetary relief from defendant Hernandez.

2

Accordingly, the court agrees with the magistrate judge’s analysis and adopts his
Report and Recommendation. Defendant Hernandez’s motion is GRANTED in PART and
DENIED in PART. Plaintiff’s Eighth Amendment official capacity claim against defendant
Hernandez is DISMISSED. The defendant’s motion is DENIED to the extent she seeks
summary judgment on plaintiff’s § 1983 claim to the extent it is asserted against her in her
individual capacity.
IT IS SO ORDERED.
Dated this 30th day of November, 2012.

3